The House Democrats not only grew a spine yesterday, they went further and gave the president the big middle finger. In passing their version of a FISA bill the House denied retroactive immunity, which was bold enough. They went further, though, and called for accountability.
The House bill includes three key elements.
It would refuse retroactive immunity to the phone companies and would instead provide special authority for the courts to decide whether the companies should be held liable in some 40 lawsuits growing out of an N.S.A. eavesdropping program approved by President Bush after the Sept. 11 attacks. It would restore certain judicial checks on wiretapping powers while plugging loopholes that the administration has cited in coverage of foreign targets. And it would create a Congressional commission to investigate the past workings of the N.S.A. program.
A Congressional commission to investigate the NSA program (think Church Committee) might discover that the illegal warrantless surveillance began before 9/11 (as former Qwest CEO Joseph Nacchio has alleged). It would probably show that the Attorney General and the FISA Court were not consulted, as Republican talking points insist that they were.
According to sources familiar with the events, Qwest’s CEO at the time, Joe Nacchio, was deeply troubled by the NSA’s assertion that Qwest didn’t need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers’ information and how that information might be used.
Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as “product” in intelligence circles — with other intelligence groups. Even so, Qwest’s lawyers were troubled by the expansiveness of the NSA request, the sources said.
The NSA, which needed Qwest’s participation to completely cover the country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest’s patriotic side: In one meeting, an NSA representative suggested that Qwest’s refusal to contribute to the database could compromise national security, one person recalled.
In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA’s explanation did little to satisfy Qwest’s lawyers. “They told (Qwest) they didn’t want to do that because FISA might not agree with them,” one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.
So…no AG letter, no FISA court, just strict illegality. And the companies that went along want immunity. The Democrats more than refused, they promised to investigate. Of course, the bill the House passed will not become law under this president. But, then again, that’s half the battle. If Bush doesn’t get immunity before he leaves office, his crimes will still be on the books…unless, that is, he pardons himself.